California Legislative Update – Labor & Employment Law Bloghttps://www.laboremploymentlawblog.com
Up-to-date Information on Labor & Employment LawFri, 18 Jan 2019 00:05:58 +0000en-UShourly1https://wordpress.org/?v=4.9.9California Legislature Amends Section 1542: Are Employer Settlement Agreements Now More Vulnerable to Attack?https://www.laboremploymentlawblog.com/2019/01/articles/california-employment-legislation/section-1542employer-settlement-agreements/
https://www.laboremploymentlawblog.com/2019/01/articles/california-employment-legislation/section-1542employer-settlement-agreements/#respondTue, 15 Jan 2019 21:07:12 +0000https://www.laboremploymentlawblog.com/?p=3379Continue Reading]]>On January 1, 2019, California’s Senate Bill No. 1431 went into effect, making a slight, but potentially significant amendment to Civil Code Section 1542. The prior version of the statute read: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” SB 1431 amended Section 1542 to now read: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The amended version of the Code adds “releasing party” and “released party” alongside creditor and debtor, respectively, and also changes “must have materially affected” to “would have materially affected” the releasing party’s decision to settle.

Although the legislative history indicates that the legislature intended a non-substantive change declarative of existing law, it is possible that a court could conclude that “would have materially affected” is a lesser standard than “must have materially affected.” Thus, settlement and release agreements lacking an express waiver to Section 1542 may now be more vulnerable to attack as applied to unknown claims. Whether this amendment is ultimately a distinction without a difference remains to be seen. Regardless, employers should take caution to ensure that their settlement and release agreements always include an express waiver to Section 1542, and that any internal template agreements are updated to reflect the recent revisions.

]]>https://www.laboremploymentlawblog.com/2019/01/articles/california-employment-legislation/section-1542employer-settlement-agreements/feed/0#MeToo Changes the Face of Sexual Harassment Litigation for Employershttps://www.laboremploymentlawblog.com/2018/11/articles/arbitration-agreements/metoo-sexual-harassment-confidentiality-clause/
https://www.laboremploymentlawblog.com/2018/11/articles/arbitration-agreements/metoo-sexual-harassment-confidentiality-clause/#respondTue, 20 Nov 2018 00:13:35 +0000https://www.laboremploymentlawblog.com/?p=3351Continue Reading]]>With the rise of the #MeToo movement, companies have been forced to re-examine how they litigate and settle allegations of sexual harassment in the workplace. Specifically, companies are facing increasing criticism if they compel claims of sexual harassment to private arbitration or force employees who allege sexual harassment to sign settlement agreements with confidentiality clauses, effectively shielding both the company and the alleged sexual harasser from public scrutiny.

In an attempt to adapt to this new landscape, several companies have recently made changes to their employment policies that could have far reaching consequences. For example, in recent months, several technology companies announced that they would no longer force their employees to resolve sexual harassment claims in private arbitration. Indeed, on November 8, 2018, Google announced plans to change the enforcement of its arbitration clause policies as they relate to claims of sexual harassment. Several large companies followed suit shortly thereafter. Moreover, Microsoft, Uber, and several other companies all made similar policy changes within the last year. Indeed, Apple has stated it has never forced a claim for sexual harassment to arbitration.

Additionally, as discussed previously here and here, both federal and state agencies have taken aim at the confidentiality clauses contained in the settlement agreements of sexual harassment claims. In December 2018, President Donald Trump signed into law a new tax bill which contained, among many other changes, a new section of the Internal Revenue Code, Section 162(q) (also referred to as the “Harvey Weinstein” Provision). This provision prohibits employers (and potentially employees) from deducting both the settlement or payment related to sexual harassment or sexual abuse claims and the attorney’s fees related thereto, if such settlement or payment is subject to a nondisclosure agreement. The result is that employers are now faced with a dilemma – forego the confidentiality clause in an agreement and retain the tax deduction, potentially exposing the company and the perpetrator to public criticism, or enforce the confidentiality clause and pay the tax.

Further, New York recently enacted, as part of its 2018-2019 budget bill, a law which prohibits employers from including in any agreement that resolves a sexual harassment claim, “a term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action” – namely, a confidentiality clause – unless the inclusion of such a clause is the employee’s choice. Finally, as discussed previously, California Governor Jerry Brown signed into law a bill that prohibits a provision in settlement agreements that prevents the disclosure of information pertaining to sexual harassment and sex discrimination.

The decisions by Google, Uber and other pioneers of the technology community to change their arbitration policies with regards to sexual harassment claims, when viewed through the lens of the changing statutory landscape, are not unexpected. Rather, these companies are making policy changes that seem almost inevitable at a time when they can still reap some public praise for their actions. Indeed, if this trend continues, it is likely that employers will be unable to keep employee claims of sexual harassment confidential without some sort of legal and/or financial consequence. Further, it is unclear if this trend will lead to similar consequences with regards to other employee claims of discriminatory or harassing treatment (for example, claims based on race, age or disability).

Given these recent developments, it is vital that companies consult with their employment counsel to update their policies regarding confidentiality, arbitration and sexual harassment claims and to make some difficult choices.

]]>https://www.laboremploymentlawblog.com/2018/11/articles/arbitration-agreements/metoo-sexual-harassment-confidentiality-clause/feed/0New Wave of Employment Bills Signed into Lawhttps://www.laboremploymentlawblog.com/2018/10/articles/california-employment-legislation/new-employment-bills-feha/
https://www.laboremploymentlawblog.com/2018/10/articles/california-employment-legislation/new-employment-bills-feha/#respondWed, 03 Oct 2018 22:23:39 +0000https://www.laboremploymentlawblog.com/?p=3328Continue Reading]]>On Sunday, September 30, 2018, Governor Jerry Brown signed into law a number of bills that will have a significant impact on litigation and legal counseling in the employment context. Many of the new laws are a response to the traction gained by the “me-too” movement and are summarized herein.

This new law nullifies any term in a contract or settlement agreement that waives a party’s right to testify in an administrative, legislative or judicial proceeding concerning alleged criminal conduct or sexual harassment. This would apply where the party has been required or requested to attend a proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.

The passage of SB 820 prohibits and makes void any provision that prevents the disclosure of information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex. SB 820 authorizes settlement agreement provisions that (1) preclude the disclosure of the amount paid in settlement, and (2) protect the claimant’s identity and any fact that could reveal the identity, so long as the claimant has requested anonymity and the opposing party is not a government agency or public official. SB 820 only impacts settlement agreements entered into after January 1, 2019.

SB 1300 makes it unlawful “for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment” to “require an employee to sign a release of claim or right.”

The bill also prohibits non-disparagements or other agreements that would “deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.”

Notably, under this bill, these restrictions would not apply to “a negotiated settlement agreement to resolve an underlying claim . . . that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process,” so long as such agreement is voluntary and involves valuable consideration.

The bill also provides that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.

Significantly, this new law also expressly affirms or rejects specified judicial decisions, with the impact of making it increasingly difficult for employers to defeat harassment claims on summary judgment. The new law addresses the following judicial decisions:

Harris v. Forklift Systems, 510 U.S. 17 (1993): The Legislature affirms of the holding in Harris, which found that in a workplace harassment suit “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”

Reid v. Google, Inc., 50 Cal.4th 512 (2010): The Legislature affirmed reliance on the “stray remarks” standard articulated in Reid. Specifically, the California Supreme Court held that the existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.

Kelley v. Conco Cos., 196 Cal.App.4th 191 (2011): The Legislature explained that the legal standard for sexual harassment should not vary by type of workplace. Further, the Legislature found that it is irrelevant that an occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, the Legislature holds that courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. To that end, the Legislature prohibits reliance on any language in Kelley, which conflicts with these principles.

Under existing law, employers, whether a public agency or private individual or corporation, are prohibited from (1) asking an applicant for employment to disclose, (2) seeking from any source, or (3) utilizing as a factor in determining employment, information concerning an applicant’s participation in a pretrial or posttrial diversion program or concerning a conviction that has been judicially dismissed or ordered sealed. It is a crime to intentionally violate these provisions. However, under existing laws, employers are not prohibited from asking an applicant about a criminal conviction or performing a background check regarding a criminal conviction to be considered in determining any condition of employment, so long as (1) the employer is required to obtain information regarding a conviction of an applicant, (2) the applicant would be required to possess or use a firearm in the course of his or her employment, (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation, or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Under the new law, employers can conduct background checks for employees under certain narrow exceptions. Specifically, under the new law, an employer, whether a public agency or private individual or corporation, cannot seek information regarding an applicant’s arrest or detention that did not result in conviction or occurred while the applicant was subject to the jurisdiction of the juvenile court. Nor can an employer seek information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law. An employer may not consider such information when determining any condition of employment. However, under the new law, an employer may conduct a background check under narrow circumstances where: (1) the employer is a health facility as defined under Section 1250 of the Health and Safety Code; (2) an applicant’s juvenile arrest or detention resulted in a felony or misdemeanor conviction that occurred within five years preceding the application for employment; (3) the employer is required to obtain information regarding a conviction of an applicant; (4) the applicant would be required to possess or use a firearm in the course of his or her employment; (5) an individual who has been convicted of a crime is prohibited by law from holding the position sought, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; or (6) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Existing law requires employers to provide a reasonable amount of break time to accommodate employees who are breastfeeding and requires an employer to make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to breastfeed privately.

This new law clarifies what it means to make reasonable efforts to provide the employee with the use of a room or other location, other than a bathroom, in close proximity to the employee’s work area, for the employee to breastfeed privately. An employer is deemed to have complied with the law if it makes a temporary lactation location available to an employee, so long as: (1) the employer is unable to provide a permanent lactation location because of operational, financial, or space limitations; (2) the temporary lactation location is private and free from intrusion while an employee expresses milk; (3) the temporary lactation location is used only for lactation purposes while an employee expresses milk; (4) the temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation. If the employer can demonstrate to the Department of Industrial Relations that this requirement would impose an undue hardship, the new law requires the employer to make reasonable efforts to provide a room or location for expressing milk that is not a toilet stall.

The new law requires employers with five or more employees, including temporary or seasonable employees, to provide at least 2 hours of sexual harassment training to all supervisors and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and one every 2 years thereafter.

Introduced as the bill to empower janitors to prevent rape on the night shift, this new law bolsters existing sexual harassment and violence prevention training and prevention measures. The new law establishes the following requirements:

Effective January 1, 2020, all employers applying for new or renewed registration must demonstrate completion of sexual harassment violence prevention requirements and provide an attestation to the Labor Commissioner.

The Department of Industrial Relations (“DIR”) must convene an advisory committee by July 1, 2019 to develop requirements for qualified organizations and peer-trainers for employers to use in providing training. The DIR must maintain a list of qualified organizations and qualified peer-trainers.

Employers, upon request, must provide an employee a copy of all training materials.

AB 2079 would also prohibit the Labor Commissioner from approving a janitorial service employer’s request for registration or for renewal if the employer has not fully satisfied a final judgment to a current or former employee for a violation of the FEHA.

The new law requires the In-Home Supportive Services (“IHSS”) program, administered by the State Department of Social Services and counties, to develop or otherwise identify standard educational material about sexual harassment and the prevention thereof to be made available to IHSS providers and recipients and a proposed method for uniform data collection to identify the prevalence of sexual harassment in the IHSS program. The bill requires the IHSS, on or before September 30, 2019, to provide a copy of the educational material and a description of the proposed method for uniform data collection to the relevant budget and policy committees of the Legislature.

The law requires a talent agency to provide educational materials on sexual harassment prevention, retaliation, and reporting resources and nutrition and eating disorders to its artists. This law would require those educational materials to be in a language the artist understands, and would require the licensee, as part of the application for license renewal, to confirm with the commissioner that it has and will continue to provide the relevant educational materials.

Further, the new law requires that, prior to the issuance of a permit to employ a minor in the entertainment industry, that an age-eligible minor and the minor’s parent or legal guardian receive and complete training in sexual harassment prevention, retaliation, and reporting resources. The bill would further require a talent agency to request and retain a copy of the minor’s entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor’s services.

To the extent these laws are violated, the commissioner is authorized to assess civil penalties of $100 for each violation, as prescribed.

Currently, under the existing laws, individuals have one year to file an administrative complaint with the Department of Fair Employment and Housing to enforce a FEHA claim. AB 1870 would have amended this deadline, extending it to three years to file a FEHA complaint from the date of the unlawful conduct. The bill would also add a 90-day extension to the filing deadline, which would apply if the aggrieved individual “first obtained knowledge of the facts of the alleged unlawful practice during the 90 days following the expiration of the applicable filing deadline.”

By vetoing this bill, the Governor has curbed the potential for frivolous FEHA lawsuits and the risk of lawsuits where memories of the circumstances giving rise to the claims have faded.

Governor Brown vetoed AB 3080, which would have prohibited employers from entering into arbitration agreements with employees. The passage of this bill would have directly conflicted with the U.S. Supreme Court’s May 2018 ruling in Epic Systems Corp., v. Lewis, 148 S. Ct. 1612 (2018), which affirmed employment arbitration agreements and class action waivers.

AB 3080 included four key provisions, including: (1) prohibiting arbitration agreements for wage and hour claims and discrimination, harassment and retaliation claims under the Fair Employment and Housing Act; (2) prohibiting employers from taking any employment action against employees who refuse to enter into arbitration agreements; (3) barring confidential agreements regarding harassment (possibly in the context of a settlement as well although the proposed text was not clear as to the scope of the prohibition); and (4) opening the possibility for individual liability for anyone that violates the provisions of the bill.

First, employers and labor contractors would be jointly liable for all civil liability for sexual harassment, including harassment on the basis of pregnancy, childbirth or related conditions. They would be forbidden from retaliating against employees who file claims.

Second, AB 3081 would have amended the California Labor Code to prohibit employers from discriminating or retaliating against an employee because of his/her status as a victim of sexual harassment.

Third, the bill would create a rebuttable presumption of unlawful retaliation if an employer “discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against” an employee within 30 days after the employer has acquired actual knowledge of the employee’s status as a sexual harassment victim.

The fact that Governor Brown vetoed this bill is not particularly surprising given that he has expressed reluctance to expand concepts of joint liability in the past. However, this decision is still notable given the momentum of the #me-too movement.

TAKEAWAYS

California employers should consider these new laws when negotiating settlement agreements and engaging in litigation. These laws serve as reminder of how important it is for all employers to review and revise where necessary their anti-harassment, discrimination, and retaliation policies on a more frequent and consistent basis. Importantly, employers may continue using arbitration agreements with class action waivers.

]]>https://www.laboremploymentlawblog.com/2018/10/articles/california-employment-legislation/new-employment-bills-feha/feed/0New California Law Puts an End to Secret Sexual Harassment Settlementshttps://www.laboremploymentlawblog.com/2018/10/articles/sexual-harassment/ca-ends-non-disclosure-settlements/
https://www.laboremploymentlawblog.com/2018/10/articles/sexual-harassment/ca-ends-non-disclosure-settlements/#respondMon, 01 Oct 2018 17:55:26 +0000https://www.laboremploymentlawblog.com/?p=3323Continue Reading]]>On September 30, 2018, California Governor Jerry Brown signed into law a bill that prohibits a provision in settlement agreements that prevents the disclosure of information pertaining to sexual harassment and sex discrimination. The law goes into effect on January 1, 2019, and serves as an extension of the already-existing law that prohibits provisions in settlement agreements that prevent the disclosure of acts that could be prosecuted as felony sex offenses and certain sex offenses against children.

This new law will apply to both public and private employers, and to both civil and administrative actions. Specifically, the law will prohibit any provision in a settlement agreement that prevents the disclosure of factual information regarding:

The failure to prevent acts of workplace sexual harassment or sex discrimination; and

Retaliation against a person for reporting sexual harassment or sex discrimination.

Any provision in a settlement agreement entered into on or after January 1, 2019 that prevents the disclosure of the information above will be considered void as a matter of public policy.

The law does permit a provision that would safeguard the identity of the claimant and any facts that could lead one to discover the claimant’s identity, but only at the request of the claimant and in matters not involving a government agency or public official. The law also permits a provision that prevents the disclosure of the amount paid to settle the claim, at the request of either party.

Courts may award civil damages for a violation of the new law, and in doing so will consider any pleadings or other papers on file in the action. Further, although not expressly stated in the new law, attorneys should be aware of the risk of being disciplined by the State Bar of California for a violation. This is expressly stated in the already-existing law referenced above pertaining to felony sex offenses, noting that attorneys are subject to investigation and discipline by the State Bar of California for demanding that such a non-disclosure provision be included in a settlement agreement.

Takeaways

California employers should consider this new law when deciding whether to settle matters. Factual information surrounding allegations of sexual harassment, discrimination, and retaliation will no longer remain confidential, resulting in a greater reputational risk to even the best-run companies. This also serves as reminder of how important it is for all employers to review and revise where necessary their anti-harassment, discrimination, and retaliation policies on a more frequent and consistent basis.

]]>https://www.laboremploymentlawblog.com/2018/10/articles/sexual-harassment/ca-ends-non-disclosure-settlements/feed/0Preparing For New Calif. Hotel Housekeeper Regshttps://www.laboremploymentlawblog.com/2018/06/articles/california-legislative-update/new-calif-hotel-housekeeper-regs/
https://www.laboremploymentlawblog.com/2018/06/articles/california-legislative-update/new-calif-hotel-housekeeper-regs/#respondFri, 29 Jun 2018 22:17:03 +0000https://www.laboremploymentlawblog.com/?p=3285Continue Reading]]>This post originally appeared in Law360 on June 14, 2018.

Earlier this year, the California Occupational Safety and Health Administration Standards Board and Office of Administrative Law approved a “Hotel Housekeeping Musculoskeletal Injury Prevention Program” that may result in sweeping changes to hospitality employers’ written policies and training practices concerning workplace injuries. The regulations take effect July 1, 2018, and affected employers have until Oct. 1, 2018, to complete their initial “work site evaluation.”

The new regulations are intended to control the risk of musculoskeletal injuries and disorders to housekeepers working in certain establishments such as hotels, motels, resorts and bed and breakfast inns. They expressly define “musculoskeletal injury” as acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.

Pursuant to the regulations, each affected employer must establish, implement and maintain an effective, written, musculoskeletal injury prevention program, or MIPP, that addresses hazards specific to housekeeping. The written MIPP may be incorporated into an existing written injury and illness prevention program, or IIPP, or maintained as a separate program. Either way, it must be readily accessible to employees, and must include:

Names or job titles of the persons with authority and responsibility for implementing the MIPP at each work site;

A system for ensuring that supervisors and housekeepers comply with the MIPP, follow the employer’s safe workplace housecleaning practices, and use the housekeeping tools or equipment deemed appropriate for each housekeeping task;

A system for communicating with housekeepers in a form readily understandable by all housekeepers on matters relating to occupational safety and health, including provisions designed to encourage housekeepers to inform the employer of hazards at the work site, and injuries or symptoms that may be related to such hazards without fear of reprisal;

Procedures to investigate musculoskeletal injuries to housekeepers. Injury investigations shall include at a minimum: (1) the procedures or housekeeping tasks being performed at the time of the injury and whether any identified control measures were available and in use; (2) if required tools or other control measures were not used, or not used appropriately, a determination of why those measures were not used or were not used appropriately; and (3) input from the injured housekeeper, the housekeeper’s union representative and the housekeeper’s supervisor as to whether any control measure, procedure or tool would have prevented the injury;

Methods or procedures for correcting hazards identified in the “work site evaluation” (discussed below) or in the investigation of musculoskeletal injuries to housekeepers, including involving housekeepers and their union representative in identifying and evaluating possible corrective measures; and

Procedures for reviewing, at least annually, the MIPP at each work site to determine its effectiveness and make any corrections when necessary, including procedure for obtaining the active involvement of housekeepers and their union representative in reviewing and updating the MIPP.

The MIPP must include procedures for identifying and evaluating housekeeping hazards through a “work site evaluation.” The initial work site evaluation must be completed by Oct. 1, 2018, three months after the regulations’ effective date. The procedures shall include an effective means of involving housekeepers and their union representative in designing and conducting the work site evaluation, and the work site evaluation must be reviewed and updated at least annually for each work site.

Additionally, the work site evaluation must identify and address potential injury risks to housekeepers at each respective work site, including but not limited to: slips, trips and falls; prolonged or awkward static postures; extreme reaches and repetitive reaches above shoulder height; lifting or forceful whole-body or hand exertions; torso bending, twisting, kneeling and squatting; pushing and pulling; falling and striking objects; pressure points where a part of the body presses against an object or surface; excessive work-rate; and inadequate recovery time between housekeeping tasks.

The new regulations require hospitality employers to evaluate each housekeeping task or process, identify potential hazards, train staff appropriately, and control exposure to injuries. For those with multiple hotels in California, it will be important to keep in mind that a one-size-fits-all program may not suffice. The regulations require an individual evaluation of each work site and identification of its respective risks and hazards.

A copy of the MIPP and all work site evaluations must be maintained at the work site and available to Cal/OSHA within 72 hours of request.

The regulations also require employers provide training to housekeepers and their supervisors in a language easily understood by the employees. The training must be provided to all housekeepers and supervisors when the MIPP is first established, to all new housekeepers and supervisors, and to all housekeepers given new job assignments for which training was not previously provided. It must also be provided at least annually thereafter, and whenever new equipment or work practices are introduced or the employer becomes aware of a new or previously unrecognized hazard.

Further, the training must include (1) the signs, symptoms and risk factors commonly associated with musculoskeletal injuries; (2) the elements of the employer’s MIPP; (3) the process for reporting safety and health concerns without fear of reprisal; (4) body mechanics and safe practices including identification of hazards, how hazards are controlled, the appropriate use of cleaning tools and equipment, and the importance of following safe work practices; (5) the important of, and process for, early reporting of symptoms and injuries to the employer; (6) practice using the types and models of equipment or tools that the housekeeper will be expected to use; and (7) an opportunity for interactive questions and answers with a person knowledgeable about hotel housekeeping equipment and procedures.

Employers are also required to train housekeeping supervisors on how to identify hazards, the employer’s hazard correction procedures, how defective equipment can be identified and replaced, how to obtain additional equipment, how to evaluate the safety of housekeepers’ work practices, and how to effectively communicate with housekeepers regarding any problems needing correction.

California hospitality employers must be prepared to not only complete the requisite work site evaluations, but also designate and retain, where appropriate, training professionals to instruct on the required components. Given the numerous requirements and the regulations’ mandate that employers receive input from housekeepers and their union representatives, employers should not wait until the last minute to establish their compliance protocols.

]]>https://www.laboremploymentlawblog.com/2018/06/articles/california-legislative-update/new-calif-hotel-housekeeper-regs/feed/0California Legislature Introduces Bill That Could Result In Massive Penalties For Employers For Late Payment of Wageshttps://www.laboremploymentlawblog.com/2018/04/articles/wage-and-hour/ab-2613-late-payment/
https://www.laboremploymentlawblog.com/2018/04/articles/wage-and-hour/ab-2613-late-payment/#respondMon, 30 Apr 2018 22:37:50 +0000https://www.laboremploymentlawblog.com/?p=3190Continue Reading]]>Currently working its way through the California Legislature is AB 2613, a potentially massive expansion of liability on employers and individuals for underpayment of wages.

AB 2613 seeks to amend the California Labor Code in three separate ways. First, Labor Code Section 210 would be amended to provide that an employer “or other person acting individually or as an officer, agent, or employee of another person” who fails to timely pay an employee’s wages (not merely final wages) owes a penalty of $200 to each affected employee for each pay period when the wages are late. Not only is this a substantial monetary penalty, but, importantly, the new requirements would impose this liability on individuals, not just the corporate employer. The new provision also makes clear that this new penalty is in addition to, and entirely independent of, any other damages or penalties under the Labor Code. The provision also explains that the $200 penalty cannot be waived by agreement of the employee. Interestingly, the bill further provides that the $200 penalty can be imposed against individuals who violate Labor Code Section 1197.5, which prohibits sex discrimination in wages.

Second, AB 2613 proposes to amend Labor Code Section 1194.2 with respect to liquidated damages. Currently, Section 1194.2 imposes liquidated damages where an employee is paid less than the minimum wage. AB 2613, in turn, seeks to impose liquidated damages any time an employer pays its employee “a wage less than the regular wages owed, when due.” The liquidated damages would be equal to the amount of the unpaid wages. Thus, this provision essentially provides for double damages in any claim for late payment of wages.

Finally, AB 2613 seeks to amend Labor Code Section 1197.1 to impose individual liability on any person acting as “an officer, agent or employee of another person.” Here, the liability would be imposed if the employee is paid “a wage less than the regular wages owed to [her] when due.” As with the other proposed amendments, the liability here could be enormous. Any initial violation that is intentionally committed would incur a penalty of $100 for each employee for each pay period for which the employee is underpaid. Then, for any subsequent violation (no matter if intentional), a $250 penalty would be imposed for each employee for each pay period. The provision specifies that these penalties are to be paid to the affected employee.

Needless to say, if this bill were to pass in its current form, employers could be on the hook for potentially enormous liability if any employee is paid late. Even paying an employee a small amount less than his or her regular wages could create substantial monetary liability for the employer. Moreover, the potentially enormous liability created by these proposed amendments would fall not just on the corporate employer, but upon individuals including officers, agents, and employees. If passed, AB 2613 will likely transform against whom wage and hour class actions are pursued, and it will likely result in many more lawsuits being filed in California. Right now, we can’t say how AB 2613 will shake out – it recently passed the Assembly Labor and Employment Committee – so stay tuned to our blog for further updates on this bill and other employment-related bills currently pending in the California legislature.

]]>https://www.laboremploymentlawblog.com/2018/04/articles/wage-and-hour/ab-2613-late-payment/feed/0It’s High Time to Update Your Marijuana Policieshttps://www.laboremploymentlawblog.com/2018/04/articles/california-legislative-update/marijuana-policies-prop-64/
https://www.laboremploymentlawblog.com/2018/04/articles/california-legislative-update/marijuana-policies-prop-64/#respondFri, 20 Apr 2018 12:09:00 +0000https://www.laboremploymentlawblog.com/?p=3148Continue Reading]]>The legalization of recreational use of marijuana in several states, including California, has left many employment policies vague and confused. This article offers insights to questions every employer should be asking in light of legalization.

California’s Rollout of Legal Marijuana

California voters passed the Adult Use of Marijuana Act (“Prop 64”) on November 8, 2016, legalizing recreational marijuana use. However, the California Bureau of Cannabis Control only began accepting, processing, and issuing licenses to commercial marijuana dispensaries as of January 1, 2018. As of April 2018, the Bureau has granted over 5,000 licenses for a variety of commercial uses, including retail sales and distribution.

Prop 64 legalizes the use and cultivation of marijuana for adults 21 years of age or older, reduces criminal penalties for specific marijuana-related offenses for adults and juveniles, and authorizes resentencing or dismissal and sealing of prior, eligible marijuana-related convictions. It also includes provisions on regulation, licensing, and taxation of legalized use. Given California’s size and wealth, the legalization has broad implications for businesses.

I Know It’s Legal in California, But What is Going on With Federal Law?

Although legal under state law, marijuana use, cultivation and possession remains illegal under federal law. Under the Federal Controlled Substances Act, marijuana remains an illegal Schedule I drug, along with MDMA, LSD, and heroin. 21 U.S.C. §812(c). While the Obama administration chose not to interfere with state legalization efforts, the current U.S. Justice Department—under Attorney General Jeff Sessions—announced a complete reversal of that policy last January, announcing that it will enforce all federal drug laws. Just this month, however, the Trump administration unilaterally announced that it is now abandoning the Justice Department’s new enforcement policy. Justice Department officials, on the other hand, have declined to comment on the White House’s reversal of its policy—further complicating the marijuana legalization quagmire.

Can We Still Have a Drug & Alcohol Free Workplace?

California employers can prohibit employees from using, or being under the influence of, marijuana while conducting company business—full stop. Prop 64 expressly recognizes California employers’ right to “enact and enforce workplace policies pertaining to marijuana.” In particular, employers can “maintain a drug and alcohol free workplace” and have “policies prohibiting the use of marijuana by employees and prospective employees.”

What is the Difference Between On Duty and Off Duty Marijuana Prohibitions?

In addition to implementing a drug and alcohol free workplace, Prop 64 also allows employers to prohibit employees’ use of marijuana off-duty. Specifically, the legalization of marijuana does not restrict or preempt “[t]he rights and obligations of public and private employers to maintain a drug and alcohol free workplace…or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.” Indeed, employers that are federal government contractors or are otherwise receiving federal funding must ensure compliance with all federal laws, including federal laws that prohibit the possession and use of marijuana, even when “medically prescribed.”

Adding to the potential confusion for employers is Labor Code Section 96, which protects employees engaging in lawful conduct—occurring during nonworking hours and away from the employer’s place of business—from adverse employment actions. Prop 64 does not address Labor Code Section 96, and it is therefore uncertain whether Labor Code Section 96 could be used to trump Prop 64’s authorization to regulate off-duty marijuana use for certain employees. Given this uncertainty, many California employers have begun to re-evaluate their position and treat marijuana usage in the same way as alcohol consumption—i.e. prohibit consumption while on-duty, but do not regulate employee’s off-duty conduct.

Do Our Policies Clearly Reflect Our Position on Marijuana?

Clearly written policies that discuss a company’s position on marijuana use is critically important. Vague policies do not mention marijuana—instead they refer to “legal” or “illegal” drugs. However, as discussed above, marijuana is both legal and illegal depending on the jurisdiction. Employers should also be mindful of other issues that may be affected, including potential invasion of privacy, disability discrimination, and wrongful termination claims.

It is important for employers to ensure their workplace drug or alcohol policies are clear, non-discriminatory, and uniformly and consistently applied. For example, employers should expressly identify the company’s position on marijuana and consider instituting a “zero tolerance” policy while an employee is (1) on company premises, (2) conducting or performing company business, (3) operating or responsible for operating company equipment or other property, or (4) responsible for the safety of others in connection with company business. Moreover, if an employer utilizes drug testing, the employer should expressly identify and explain the drug testing policy. Lastly, employers should clearly articulate that a violation of either policy is grounds for immediate termination.

Because of the complications that may arise in balancing the employer’s legitimate interest in a drug free workplace with an employer’s legal obligations regarding discrimination, reasonable accommodations, invasion of privacy, and maintaining confidential medical information, employers should consult with counsel before implementing or revising programs or policies related to drug and alcohol use.

Can We Still Drug Test Employees for Marijuana?

Proposition 64 does not prohibit or limit an employer’s ability to screen for marijuana use as a condition of hiring or promotion. California law continues to allow employers to require pre-employment drug tests and take illegal drug use into consideration in making employment decisions, so long as such policies are applied in a consistent and non-discriminatory manner. Providing adequate disclosures, conditional offers of employment, and obtaining appropriate consent is also imperative before drug testing applicants.

Drug testing current employees, on the other hand, is more complex. While employers are permitted to drug test current employees, this right is subject to limitations under both state and federal law. Drug testing done on an existing employee is permissible if there is “reasonable cause.” For example, an employer may require a drug test if there is a reasonable belief that an employee is under the influence at work in violation of company policy. Red eyes, distant gaze, and the strong aroma of marijuana are all indicators that an employee may be under the influence of marijuana. Ultimately, the law balances the employer’s right to maintain a drug free workplace with the employee’s expectation of privacy. To tip the balance, employers should have express written policies, and obtain prior consent through a written authorization form. Employers should also take care to consider the specific jobs for which drug testing is needed, ensuring that individuals in protected groups are not disparately impacted.

Lastly, it is important to reconsider whether drug testing for marijuana—while permitted by law—is a necessary business practice in the first place. The administration of employee drug testing programs can be costly and logistically burdensome, and employers who are not subject to an explicit drug testing mandate (i.e. federal government contractors, trucking companies, etc.) should evaluate the costs and benefits of testing for marijuana at all.

Takeaways

Confer with your leadership team to discuss how your company feels about marijuana use off-duty and whether certain laws may require regulating employees’ off-duty conduct.

Review and revise your employee handbook to confirm your policies align with company objectives and that your policy does not vaguely refer to legal or illegal drugs.

Confer with legal counsel to determine whether your organization or certain positions may be subject to federally mandated marijuana prohibitions.

Confirm consent forms and disclosures related to drug testing are up to date.

]]>https://www.laboremploymentlawblog.com/2018/04/articles/california-legislative-update/marijuana-policies-prop-64/feed/0UPDATE: The Federal Defend Trade Secrets Act vs. The California Uniform Trade Secrets Acthttps://www.laboremploymentlawblog.com/2018/03/articles/california-legislative-update/update-dtsa/
https://www.laboremploymentlawblog.com/2018/03/articles/california-legislative-update/update-dtsa/#respondFri, 30 Mar 2018 20:51:01 +0000https://www.laboremploymentlawblog.com/?p=3109Continue Reading]]>We first wrote on this topic nearly a year ago[1]. Since then, courts have had an opportunity to interpret some of the provisions of the federal Defend Trade Secrets Act (DTSA). Indeed, since it was signed into law, more than 360 DTSA claims have been filed, with more than 343 complaints filed in federal court. California has seen more of these cases than any other state, finding itself host to over 15% of all DTSA claims.

As we addressed in our previous blog, there are some key distinctions between the DTSA and California’s Uniform Trade Secret Act (CUTSA) that may inform companies how to run their businesses and prepare for litigation should it be necessary. Some of these distinctions have come into greater focus as courts have interpreted the DTSA, at times with surprising results.

Inevitable Disclosure. When enacted, the DTSA was generally thought to reject the doctrine of inevitable disclosure like CUTSA. The doctrine of inevitable disclosure enables a plaintiff to “prove a claim of threatened misappropriation by demonstrating that the nature of a former employee’s new employment will ‘inevitably’ lead him to rely on the plaintiff’s trade secret.”[2] The DTSA provides that a court may enjoin “any actual or threatened misappropriation . . . provided the order does not prevent a person from accepting an offer of employment under conditions that avoid actual or threatened misappropriation.” 18 U.S.C. § 1836(b)(3)(A)(i)(I)).

Nevertheless, some courts have issued inevitable disclosure injunctions under the DTSA. For example, in Mickey’s Linen v. Fischer, the district court for the Northern District of Illinois granted a preliminary injunction, finding that the defendant-former employee would “inevitably use or disclose [the plaintiff’s] trade secrets during his employment with [a competitor].[3] Thus, notwithstanding DTSA’s prohibition on injunctions that preclude employment, there may be jurisdictions where it is possible to obtain an injunction based on inevitable disclosure (although California is unlikely to be one of them).[4] This is somewhat ironic since one of the purposes in enacting DTSA was uniformity across jurisdictions.

Whistleblower Immunity.[5] Unlike CUTSA, the DTSA expressly provides for whistleblower immunity. The thought was that whistleblowers would be more likely to whistleblow if they did not have to worry about the cost and burden of a resulting DTSA lawsuit. But that is not how it has turned out, at least based on Unum Group v. Loftus.[6] There, defendant employee moved to dismiss the plaintiff employer’s trade secret misappropriation claims on whistleblower immunity grounds. He claimed that he had turned over the documents that he took to his attorney in order to report and investigate a violation of law. The court denied the motion, reasoning that such defense cannot be adjudicated at the pleading stage and, instead, a defendant must submit to discovery and present evidence to justify the whistleblower immunity. Although this requirement may burden the putative whistleblower defendant, it may also prevent a defendant from evading litigation based on a mere cry of whistleblowing.

Ex Parte Seizure Order. Unlike CUTSA, the DTSA expressly allows a plaintiff to request – without any notice to the defendant — a court order directing enforcement officials to seize property to prevent further misappropriation. Given the potential power and disruptive nature of such a remedy, there was a lot of talk and concern about this aspect of the DTSA before and after its enactment. But, with the DTSA having over a year under its belt, practice shows that ex parte seizures are rarely sought and courts almost never issue them. The remedy is treated as truly extraordinary. Mission Capital Advisors LLC v. Romaka, [7] is one of the few cases where a DTSA ex parte seizure order was actually granted. The court there reasoned that the requisite extraordinary circumstances were present in light of the forensic evidence and misrepresentations about data deletion. The result in OOO Brunswick Rail Management v. Sultanov[8] – denial of an ex parte seizure order — is more the norm. There, the plaintiff argued that the seizure was necessary to stop data deletion and destruction of the evidence.[9] In denying the seizure requests in that case, the court instead ordered document preservation and delivery of devices to the court at the time of a scheduled preliminary injunction hearing.[10]

Sheppard Mullin attorneys have extensive experience litigating trade secret disputes, as well as navigating clients through the nuances of trade secret law outside of litigation.

[4] The DTSA prohibits injunctions that conflict with applicable state law precluding restraints on employment. 18 U.S.C. §1836(b)(3)(A)(i).

[5] A whistleblower is ordinarily thought to be someone who brings to light illegal activity of her company (e.g., by disclosing the matter to the attention of the authorities). Without laws to protect them, whistleblowers may risk reprisal and retaliation. The DTSA’s whistleblower immunity provision is one such law.

]]>https://www.laboremploymentlawblog.com/2018/03/articles/california-legislative-update/update-dtsa/feed/0California Governor Approves Three More Employment Laws: “Ban The Box”; Expansion of Sexual Harassment Training; and Contractors Liable for Subcontractors’ Wage and Benefit Obligationshttps://www.laboremploymentlawblog.com/2017/10/articles/california-legislative-update/new-laws-sexual-harassment-training/
https://www.laboremploymentlawblog.com/2017/10/articles/california-legislative-update/new-laws-sexual-harassment-training/#respondTue, 17 Oct 2017 21:33:27 +0000http://www.laboremploymentlawblog.com/?p=2948Continue Reading]]>The deadline for California Governor Jerry Brown to sign new bills into law officially expired October 15, 2017. In addition to signing five bills last week, the Governor signed three more employment-related bills into law over the weekend relating to the use of job applicants’ criminal history, the required components of sexual harassment training, and the liability of building contractors for their subcontractors’ failure to pay wages, fringe benefits, or other benefit payments. The three new laws all become effective on January 1, 2018.

Restrictions on the Use of, and Inquiry into, Applicants’ Conviction History (AB 1008)

“Ban the Box” laws have been on the rise in recent years. As we explained in our general discussion of this trend earlier this year, “Ban the Box” laws typically prohibit employers from asking applicants about prior convictions on a job application and restrict an employer from seeking out or relying upon an applicant’s conviction history until later in the hiring process. Some laws, such as those adopted in Los Angeles, New York, and San Francisco, also impose a “fair chance” process that regulates the conditions and manner for employers to use prior convictions as a basis for denying employment.

Effective January 1, 2018, AB 1008 amends the Fair Employment and Housing Act to prohibit employers with five or more employers from directly or indirectly inquiring into, seeking the disclosure of, or considering an applicant’s conviction history (including questions on a job application) until after the applicant receives a conditional offer of employment. AB 1008 also prohibits employers from considering, distributing, or disseminating information about any of the following while conducting a background check in connection with an application for employment:

Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

AB 1008 expressly does not apply to positions: with a criminal justice agency; with a farm labor contractor; where a state or local agency is legally required to conduct a conviction history background check; or where state, federal, or local law either requires an employer to conduct criminal background checks or restricts employment based on criminal history.

Like the local ordinances adopted in Los Angeles, New York, and San Francisco, AB 1008 mandates that employers follow a “fair chance” process before denying employment based on an applicant’s conviction history. AB 1008’s process—which will apply to all employers with five or more employees beginning on January 1, 2018—operates as follows:

Individualized Assessment. Employers who intend to deny employment to an applicant based on his or her conviction history must first perform an “individualized assessment” of whether the conviction history has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”

Written Notice of Preliminary Decision. If an employer makes a preliminary decision to deny employment after performing an individualized assessment of the conviction history, the employer must provide the applicant with written notification of the preliminary decision and the conviction history that is the basis for decision. The employer must also provide the applicant with a copy of any conviction history report the employer obtained, and the employer must expressly inform the employee of the right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.

5 Day Waiting Period. Applicants will have at least five business days to respond, in writing, to any notice of a preliminary decision to deny employment based in any way on the applicant’s conviction history, and employers must consider any information submitted before finalizing an employment decision. If the applicant disputes the accuracy of a conviction history report and states that they are taking steps to obtain evidence supporting that assertion, they will receive five additional business days to respond to the notice.

Final Written Notice. Once an employer finalizes a decision to deny employment based on the applicant’s conviction history, the employer must notify the applicant in writing of the final decision, of any employer-provided procedures for challenging the decision, and of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.

Employees who suffer a violation of the State’s “Ban the Box” law will be able to file claims with the Department of Fair Employment and Housing in pursuit of any remedies available under the Fair Employment and Housing Act, which may include compensatory damages, punitive damages, and attorney’s fees. Notably, AB 1008 explicitly states that these remedies are “in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.”

Expanded Categories of Harassment Training (SB 396)

The Fair Employment and Housing Act currently requires employers with 50 or more employees to provide at least two hours of sexual harassment training to all supervisory employees within 6 months of the assumption of a supervisory position and once every two years thereafter. It also requires employers with five or more employees to post a copy of the Department of Fair Employment and Housing’s poster discussing prohibitions against discrimination and harassment at a “prominent and accessible location in the workplace.”

SB 396 amends the Fair Employment and Housing Act’s posting requirements by mandating the posting of the Department’s recently-created poster regarding transgender rights in the workplace. It also states that required sexual harassment training must now include training about harassment based on gender identity, gender expression, and sexual orientation. That mandated training must include practical examples of harassment based on gender identity, gender expression, and sexual orientation, and must be presented by trainers or educators with knowledge and expertise in those areas.

Labor Code section 1743 holds contractors jointly and severally liable with their subcontractors for underpaid wages and penalties on public works projects subject to California’s prevailing wage laws. AB 1701 extends this practice outside of the public works arena by making contractors who perform projects in California involving “the erection, construction, alteration, or repair of a building, structure, or other private work” jointly and severally liable with their subcontractors for any failure to pay wages, fringe benefits, or other benefit payments or contributions on any contract entered into on or after January 1, 2018. In contrast to the prevailing wage context, however, direct contractors are not jointly liable for penalties or liquidated damages. Additionally, the new law does not affect the right of contractors and subcontractors at any tier to enter into indemnification agreements regarding any failure to pay wages, fringe benefits, or other benefits or contributions.

AB 1701 authorizes enforcement of its provisions through a civil action by the Labor Commissioner, by any third party owed fringe or other benefit payments or contributions on a wage claimant’s behalf, or by a joint labor-management cooperation committee established pursuant to the federal Labor Management Cooperation Act of 1978. Prevailing plaintiffs are entitled to recover their attorney’s fees.

To assist general contractors’ ability to ensure that subcontractors comply with applicable wage laws, AB 1701 also entitles general contractors to obtain payroll records and contract award information from a subcontractor and any lower tier subcontractors under contract to the subcontractor.

In connection with his approval of AB 1701, Governor Brown issued a signing statement encouraging AB 1701’s sponsors to move forward with a proposed bill to strike an ambiguous provision of AB 1701 concerning the limitations of liability imposed by the new law. The language at issue states that the AB 1701’s obligations and remedies are “in addition to any obligations and remedies otherwise provided by law, except that nothing in this section shall be construed to impose liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions including interest owed.”

]]>https://www.laboremploymentlawblog.com/2017/10/articles/california-legislative-update/new-laws-sexual-harassment-training/feed/0California Governor Vetoes Two Bills Related to Public Report of Gender Wage Differentials and Discrimination Based on “Reproductive Health Decisions”https://www.laboremploymentlawblog.com/2017/10/articles/california-employment-legislation/cagovernor-vetoes-reproductive-health-decisions/
https://www.laboremploymentlawblog.com/2017/10/articles/california-employment-legislation/cagovernor-vetoes-reproductive-health-decisions/#respondTue, 17 Oct 2017 21:22:53 +0000http://www.laboremploymentlawblog.com/?p=2951Continue Reading]]>Late Sunday afternoon, Governor Brown vetoed a proposal to impose a controversial new mandate for large California employers to collect and publicly report data about the salaries of male and female employees and board members. The Governor also vetoed a proposal to amend the California Labor Code to expressly prohibit employers from discriminating against employees based on their “reproductive health decisions.”

Governor Vetoes Gender Wage Reporting Bill For Potentially Doing More Harm Than Good

Dubbed the Gender Pay Gap Transparency Act, AB 1209 sought to require businesses with 500 or more California employees to biennially collect and report the following information on gender wage differentials to the Secretary of State:

The difference between the mean wages of male and female employees who work in California as an overtime-exempt administrative, executive, or professional employee, by each job classification or title;

The difference between the median wages of male and female employees who work in California as an overtime-exempt administrative, executive, or professional employee, by each job classification or title;

The difference between the mean wages of male and female board members located in California;

The difference between the median wages of male and female board members located in California; and

The number of employees used to determine the wage mean and median wage differentials for overtime-exempt administrative, executive, or professional employees.

That data would have then been published by the Secretary of State on a publicly-available website.

The California Chamber of Commerce included AB 1209 among its annual list of “Job Killers,” and criticized the bill as having the potential to “publicly shame employers and expose them to costly litigation for alleged wage disparity where no violation of the equal pay law exists.” Several other employer associations joined the California Chamber of Commerce’s opposition earlier this year.

In his veto message, Governor Brown reiterated his support for “policies that ensure women are compensated equitably,” but expressed concern about AB 1209’s “ambiguous wording” and the possibility that the bill’s ambiguity could be “exploited to encourage more litigation than pay equity.” Governor Brown also noted that the State’s Pay Equity Task Force was in the process of developing guidance and recommendations to assist employers with assessing their compliance with California’s Equal Pay Act.

Governor Brown also exercised his veto power over AB 569, which would have added a new section to the Labor Code making it unlawful for employers to take adverse actions against employees (or their dependents or family members) for “reproductive health decisions.” The bill’s legislative history indicated that it was designed to protect employees from discrimination based on their engagement in acts such as getting an abortion, using contraception, having a vasectomy done, or becoming pregnant out of wedlock or through in vitro fertilization. The bill would have specifically prohibited and invalidated any contract or agreement that required employees to expressly or impliedly waive the protections or benefits of its provisions, such as controversial codes of conduct that proscribe certain reproductive health decisions.

AB 569’s legislative history stated that it was designed to regulate conduct by small, private employers and certain non-profit and religious institutions excluded from the Fair Employment and Housing Act’s coverage. With the exception of employees performing non-religious duties at a health care facility operated by a religious corporation or association, the Fair Employment and Housing Act does not currently apply to non-profit religious associations or corporations. Its coverage also excludes employers with fewer than five employees.

Some opponents of the bill argued that AB 569 would infringe the religious freedom of churches, religious groups, and pro-life organizations and undermine those organizations ability to “be faithful to their religious beliefs and core mission.” The California Chamber of Commerce opposed the bill for exposing employers to the jurisdiction of multiple state agencies with different procedural and investigative requirements.

In vetoing AB 569, Governor Brown stated that the Fair Employment and Housing Act has “long banned” discrimination against employees for their reproductive health decisions, and expressed his belief that jurisdiction over such claims should remain within the purview of the Department of Fair Employment and Housing.

* * *

Governor Brown’s veto of AB 1209 and AB 569 can be overridden by a two-thirds vote of both California legislative houses. However, the Legislature has not overridden a veto since 1979.